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Court of AppealDismissedCriminal Appeal No. 129 of 2001

Antony Chege Kibathi v Republic [2001] KECA 323 (KLR)

Court of Appeal
7 December 2001
JGJ.E. GicheruALA.A. LakhaMKM. Keiwua
402 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Kibathi's appeal, confirming that eyewitnesses who caught him hitting a man with a metal bar supported his assault conviction.

What this practically means

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Executive summary

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This is a second appeal in a criminal case. Antony Chege Kibathi was convicted by Resident Magistrate Shem Kebong'o at Gatundu of grievous harm contrary to section 234 of the Penal Code and sentenced to three years' imprisonment. On first appeal, the High Court at Nairobi (Etyang, J) quashed that conviction, substituted a conviction for assault causing actual bodily harm contrary to section 251 of the Penal Code, and set aside the sentence, substituting eighteen months' imprisonment running from the date of conviction. The appellant then appealed to the Court of Appeal against that decision. The main ground argued was that, properly assessed, there was no evidence at all to support the conviction; it was submitted that the charge had not been proved beyond reasonable doubt and that the superior court's own doubt was demonstrated by its quashing of the original conviction. The Court of Appeal agreed that the submission that the finding in fact had no evidence to support it raised a matter of law properly for its decision. On the merits, however, it concluded that there was evidence on record capable of being taken into consideration to sustain the charge, pointing to overwhelming evidence from PW1, PW4 and PW5, who testified that on arrival at the scene they found the appellant armed with a metal bar and still hitting the complainant. The Court could not hold that there was no evidence of that fact. The appeal was dismissed in its entirety, leaving the High Court's substituted conviction and sentence intact. The judgment is a single judgment of the whole court, makes no costs order, and cites no prior authorities; the only legislation referred to is the Penal Code, sections 234 and 251.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the submission that the finding in fact had no evidence to support it raised a matter of law properly for decision by the Court of Appeal on second appeal.
  2. 2.Whether, on a proper assessment of the evidence, there was any evidence on record capable of sustaining the conviction for assault causing actual bodily harm.

Key legal issues

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01

Whether the submission that the finding in fact had no evidence to support it raised a matter of law properly for decision by the Court on second appeal.

Holding

Yes. The Court agreed that the ground raised a matter of law properly for its decision, and proceeded to determine it.

Reasoning

The appellant's main ground was that, properly assessed, there was no evidence at all to support the conviction and that the charge had not been proved beyond reasonable doubt, as demonstrated by the High Court's own quashing of the original conviction. The Court accepted that the submission that the finding in fact has no evidence to support it raised a matter of law properly for its decision. Having entertained the point, it examined the record and found evidence capable of sustaining the charge, which disposed of the appeal.

p. 1
02

Whether there was evidence on record capable of supporting the conviction for assault causing actual bodily harm.

Holding

Yes. The evidence of PW1, PW4 and PW5, who found the appellant armed with a metal bar and still hitting the complainant, was capable of sustaining the charge; the appeal therefore failed.

Reasoning

The only substantive ground was that no evidence supported the conviction. The Court identified overwhelming eyewitness evidence from PW1, PW4 and PW5, who testified that upon their arrival at the scene they found the appellant armed with a metal bar and still hitting the complainant. In light of that evidence the Court could not hold that there was no evidence of the fact, and the conviction substituted by the High Court stood. The appeal was dismissed accordingly.

p. 1

Legal principles established

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  • A submission that a trial court's finding of fact has no evidence to support it raises a matter of law properly for decision by the Court of Appeal on second appeal.
  • Where there is evidence on record capable of being taken into consideration to sustain the charge, an appellate court cannot hold that there was no evidence to support the conviction, and the appeal against that conviction must fail.

Court orders

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  1. 1.The appeal is dismissed.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
AL
majority
MK
majority
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 889 of 2001
Jurisdiction invoked
Not expressly cited in the judgment. The appeal was a second appeal in a criminal case from the High Court, which the Court entertained because the ground raised 'a matter of law properly for decision by this Court'.

Relief refused

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Quashing of the conviction for assault causing actual bodily harm and the sentence of eighteen months' imprisonment substituted by the High Court.

There was evidence on record capable of being taken into consideration to sustain the charge; the Court could not hold that there was no evidence of the appellant striking the complainant.

p. 1

Costs

No costs order was made; the judgment is silent on costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we have come to the conclusion that there is evidence on record capable of being taken into consideration to sustain the charge
p. 1Sufficiency of evidence on second appeal
There was overwhelming evidence of P.W.1., P.W.4 and P.W.5. who testified that upon their arrival at the scene, they found the appellant armed with a metal bar and still hitting the complainant.
p. 1Eyewitness evidence sustaining a conviction for assault causing actual bodily harm
We certainly cannot hold that there was no evidence of this fact and that being so, we must dismiss this appeal and it is dismissed accordingly.
p. 1Disposition - final orders dismissing the appeal

Issues in the judgment

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minor

The appellant's first name is spelled 'ANTONY' in the case caption but 'ANTHONY' in the opening line of the judgment body.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Antony Chege Kibathi v Republic [2001] KECA 323 (KLR)", Case Analysis (2001). Criminal Appeal No. 129 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/323/eng@2001-12-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.